Legal Updates August 2021

August 30, 2021

Image Description: Long Beach at sunset by Andrew Sprague. A sandy beach is in the foreground and the sky is soft pink and blue.

Shoreline Master Programs

Over the past year, Futurewise has been hard at work to strengthen and improve shoreline master programs (SMP) statewide, focusing on SMP updates in Grays Harbor, Whatcom, Clallam, Wahkiakum, Clark and Skamania counties. We focused on provisions specific to fish and wildlife protection such as buffers, protecting habitat in channel migration zones, protecting the nearshore habitats salmon and their prey species depend on, and protecting riparian vegetation and habitat restoration.

Grays Harbor County SMP Update Appeal

Grays Harbor County residents and fish and wildlife habitats will be more severely affected by sea level rise than any other Washington county. Grays Harbor has large areas of estuarine and terrestrial habitat that are vulnerable to sea level rise. Marshes and wetlands will migrate inland as sea level rises. However, if the SMP regulations are not updated to allow the vegetation to migrate landward in feasible locations, wetlands and shoreline vegetation will decline harming fish and wildlife. It will also deprive marine shorelines of vegetation that protects property from erosion.

The official shorelines advisory committee for the SMP update agreed that the impacts of sea level rise are a serious concern to the residents of the county. Sea level rise was addressed 14 times in the draft the committee approved. However, the only mention of sea level rise in the SMP approved by the county and Ecology is to note that the public raised the issue.

Futurewise and the Friends of Grays Harbor appealed Ecology’s approval of the SMP update to the Shorelines Hearings Board. All briefing has been completed and the oral argument was held on July 30. 2021. We anticipate a decision any day. If our appeal is successful, counties and cities will have to address sea level rise in their SMP updates.

Whatcom County Shoreline Master Program (SMP) Periodic Update

Periodic updates take place every eight years and incorporate new information and changes into the SMP. Futurewise and its partners wrote four comment letters during the grant period. Based on our advocacy, the Planning Commission made eight improvements to the SMP update including removing language that would have prohibited requiring development to be moved out of hazardous areas such as channel migration zones, areas where a river or stream will move overtime, and wildlife habitats. While the SMP Update includes policies on sea level rise, they do not require new development to be protected from sea level rise nor do they require addressing the impacts on fish and wildlife habitat.

Clallam County SMP Update

After two and a half years of review, the State of Washington Department of Ecology (Ecology) approved the Clallam County SMP Update. This is the first update to the SMP using the new SMP Guidelines, not a periodic update. Three improvements Futurewise advocated for were incorporated including requiring mitigation to replace impacts to shoreline ecological processes including fish and wildlife habitat and requiring the channel migration zones be based on thirty years of aerial images. This will result in more accurate determinations of where rivers and streams will migrate over time. Channel migration zones are both hazardous places to construct buildings and they create important fish and wildlife habitats including salmon spawning areas.

Many of our recommendations were not addressed. There are, for example, no provisions addressing sea level rise. Futurewise will be working with our partners to determine if an appeal is warranted.

Wahkiakum County SMP Update

For the past several years Futurewise has been waiting for an opportunity to comment on the Wahkiakum SMP Update. On August 4, 2021, the county held a public hearing. Futurewise testified and provided a letter explaining the serious problems with protections for fish and wildlife and the consequences of the failure to address sea level rise.

Clark County SMP Periodic Update

Futurewise wrote three letters commenting on the Clark County SMP Periodic Update. In response to these comments, the county revised the SMP periodic update to clarify that all fish and wildlife habitats are to be protected, that up-to-date lists of species and habitat protection regulations are to be used, and that net pen aquaculture for nonnative species will not be allowed. Unfortunately, the county did not address sea level rise. The SMP Update was approved by Ecology this year.

Skamania County SMP Update

Skamania County Completed both its first comprehensive update of the SMP and its periodic update of the SMP during the planning period. Futurewise and its partners commented extensively on the updates. Some of our recommendations were incorporated.

Okanogan Development Regulations

Futurewise commented on the proposed comprehensive plan and development regulations and a supplemental impact environmental impact statement in Okanogan County. The comments documented the need for better protection for fish and wildlife habitat. The county is currently reconsidering these provisions.

In February, after comments from Futurewise, the Department of Ecology issued a new interpretation of the instream rule for the Methow Valley. Instream flows are authorized by the state water codes and instream flow rules seek to keep a minimum amount of water in stream or river to protect both local wildlife and provide enough water for human uses. This new interpretation will better protect water resources in a very drought-heavy region with booming population growth. Learn more from our Tim Talk with the Methow Valley Citizens Council!

Thanks to the new interpretation from the Department of Ecology, Futurewise and its partners convinced the county to stop approving most new lots and permits that use illegal water sources which reduce the water in the Methow River. Futurewise provided the county, Ecology, and the public with a compelling analysis that showed that subdivisions were illegal, taking water away from farms and ranches and senior water rights holders, and harming fish and wildlife habitat in the Methow River and its tributaries. The Methow is important habitat for federally designated threatened and endangered salmon species. The county had been approving these illegal subdivisions and permits for 19 years and would still be doing so without our advocacy and legal analysis. Some more work remains to be done, as the county still allows a lot containing a house to create a second lot using illegal water sources.


King County Wineries, Breweries and Distilleries Appeal

In 2019, King County adopted a new ordinance to regulate wineries, breweries and distilleries in the Sammamish Valley. The ordinance was drafted to address increased concerns from residents and farmers in rural King County regarding the illegal operation of wine or beer production facilities and tasting rooms on properties zoned for agricultural and rural uses and to legalize some of the tasting rooms. (More information in Wonkabout Washington) However, Futurewise believed the ordinance as adopted was insufficient in protecting working farms and water resources. With our partners Friends of the Sammamish Valley, we appealed the ordinance to the Growth Management Hearings Board and were successful in front of the GMHB.

The county appealed our Growth Management Hearings Board win to superior court. The Board had concluded that King County improperly conducted State Environmental Policy Act (SEPA) review and refused to dismiss some of the issues in the appeal. The superior court judge concluded that the Board erred in using a summary judgment process to conclude that King County improperly conducted SEPA review of the wineries, breweries, and distilleries ordinance. That issue was remanded back to the Board for briefing and full hearing on the merits of the County’s SEPA review. The court agreed with the Board that the two issues were properly before the Board.

Futurewise and the Friends of the Sammamish Valley appealed the SEPA conclusion to the court of appeals, Washington’s intermediate appellate court. King County cross-appealed the decision not to dismiss the issues.

We then agreed to dismiss the appeals and to try to negotiate a solution to the appeals. The Growth Management Hearings Board has granted us a stay to try to work out a mutually agreeable solution.

Pierce County Centers and Corridors Plan

Pierce County’s Centers and Corridors plan proposed to increase densities in parts of unincorporated Pierce County without transit service, sidewalks, schools, and other basic public services. It also failed to integrate affordable housing and anti-displacement strategies into the upzones. The county’s own housing studies show that the proposal is likely to shift housing from areas in Tacoma that have transit and sidewalks, are planned for higher density multifamily housing, and require developers to provide affordable housing and contribute to needed public facilities. For these reasons, Futurewise appealed the plan.

In 2021, we settled our Pierce County appeal. Pierce County limited the new centers comprehensive plan designations and zoning to areas that are designated as transit-oriented communities in the Puget Sound Regional Council’s Vision 2050, the region’s long range transportation plan. The county repealed the Fredrickson Town Center which was inconsistent with Vision 2050. The increased centers densities will not apply until bus rapid transit is funded to the serve each of the centers. Pierce County adopted policies giving priority for public facility funding for designated centers including improvements to support walking, bicycling, and transit use. Victory!